Boateng v Dharamdas

The appeal concerned an application by the appellant, Mr Boateng, for leave to appeal against a costs order made by a judge of the Supreme Court of New South Wales. The dispute arose from an earlier proceeding where Mr Boateng had made an offer of compromise to the respondent, Ms Dharamdas. Following the judgment in that proceeding, Ms Dharamdas sought her costs, arguing that the judgment was not more favourable to Mr Boateng than his offer of compromise. The primary judge agreed and made an order for costs in favour of Ms Dharamdas. Mr Boateng subsequently sought to have this costs order varied, but his application was dismissed.

The central legal issues before the Court of Appeal were whether the costs order made by the primary judge was a final order, and if so, whether the court had the power to dispense with the usual requirement of filing a notice of motion under section 14 of the *Civil Procedure Act 2005* (NSW) to vary that order. The court also considered the circumstances in which a judgment might be considered "no more favourable" than an offer of compromise for the purposes of a costs order, and whether the primary judge had erred in their assessment.

The Court of Appeal held that the costs order made by the primary judge was final. It reasoned that the primary judge had exercised their discretion in making the costs order, and that such an order, once made, is generally final unless specific grounds for variation are established. The court further found that there was no basis to dispense with the filing of a notice of motion, as the application to vary the costs order was essentially an attempt to re-litigate the original costs decision. The court also affirmed that the primary judge had correctly applied the principles relating to offers of compromise and the assessment of whether a judgment was "no more favourable" than such an offer.

Consequently, the Court of Appeal dismissed Mr Boateng's application for leave to appeal, ordering that he pay Ms Dharamdas's costs of the application.